JACK POUST & COMPANY v. JOHN GROSS & COMPANY

• Decision Date: 15 June 1972
• Docket Number: Patent Appeal No. 8618.
• Citation: 460 F.2d 1076,174 USPQ 149
• Parties: JACK POUST & COMPANY, INC., Appellant, v. JOHN GROSS & COMPANY, Appellee.
• Court: U.S. Court of Customs and Patent Appeals (CCPA)

174 USPQ 149, 460 F.2d 1076 (1972)

JACK POUST & COMPANY, INC., Appellant, v. JOHN GROSS & COMPANY, Appellee.

Patent Appeal No. 8618.

United States Court of Customs and Patent Appeals.

June 15, 1972.

Alex Friedman, New York City, attorney of record, for appellant.

Albert H. Kirchner, attorney of record, for appellee.

Before RICH, ALMOND, BALDWIN and LANE, Judges, and RAO, Judge, United States Customs Court, sitting by designation.

BALDWIN, Judge.

This appeal is from the decision of the Trademark Trial and Appeal Board¹ dismissing an opposition to appellee's application² to register CHERRY JUBILEE, the word CHERRY being disclaimed, for wine. Appellant asserts that appellee's mark so resembles CHERRY JULEP, used and registered³ by appellant prior to appellee's asserted first use, and CHERRY JUBILEE, allegedly used by appellant's predecessor since a date prior to appellant's asserted date of first use, both used for wine, as to be likely to cause confusion or to cause mistake or to deceptively cause purchasers to believe that appellee's wines have their origin with appellant.

Appellant introduced evidence including testimony of its president, Jack Poust, and documentary exhibits. Appellee took no testimony and thus is restricted to its filing date for first use.

Appellant's claim to rights in the mark CHERRY JUBILEE is based on activities beginning one year before Poust testified in December of 1967. Poust testified that he was advised through the Customs Bureau at that time that a shipment of CHERRY JUBILEE wine was coming into the country. He stated that he then contacted a representative of Tower Eximpo, Inc., the importer, whom he advised that he considered CHERRY JUBILEE an infringement of the mark CHERRY JULEP. Poust further stated that appellant then bought the imported CHERRY JUBILEE stock and sold it and that Tower Eximpo, Inc. "transferred the rights of the label, the brand name" to appellant. The sale of the label was said to have occurred some time in May 1967.

Appellant offered certain documentary material procured from Tower Eximpo with the explanation that it was all that was available because that company was small and had destroyed its records. The material consisted of a photocopy of an Internal Revenue Service certificate of approval of a CHERRY JUBILEE label issued February 8, 1960 to Tower Eximpo, Inc.; a copy of a schedule of minimum consumer resale prices on CHERRY JUBILEE wine dated March 31, 1960; and two Tower Eximpo invoices, dated January 2, 1963 and March 1, 1963, referring to two shipments of CHERRY JUBILEE wine by that company to a consignee in New York.

The board ruled that the testimony of Poust regarding use of CHERRY JUBILEE by Tower Eximpo, the certificate of label approval and the schedule of minimum resale prices were not probative of any sales prior to 1967. The board stated further:

As to the invoices, opposer\'s president obviously could not testify as to the circumstances surrounding the events covered thereby and the invoices could only suggest that two sales of "CHERRY JUBILEE" wine occurred both in 1963. There is no evidence of any probative value to establish any sales from 1963 until May 1967 when opposer allegedly succeeded to Tower Eximpo, Inc.\'s interest, in the mark. In summation, opposer\'s record as to use of the mark "CHERRY JUBILEE" is at best sufficient to show that opposer acquired the rights to the mark "CHERRY JUBILEE" in May 1967 along with an "inventory" of wine, apparently the shipment detained by the Customs Department, and that it promptly disposed of this inventory in minimal shipments after applicant filed its application to register the mark in question. Hence, opposer has failed to sustain its burden of proof with respect to the allegation of prior rights in the unregistered mark

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